Full opinion text
OPINION SWEET, District Judge. The defendants Alberto Gonzales (“Gonzales”) in his official capacity as Attorney General of the United States and the United States of America (collectively, the “government”) have moved under Rule 12, Fed.R.Civ.P., to dismiss the complaint of The New York Times Company (“The Times”) seeking a declaratory judgment concerning the confidentiality of telephone records for two of its reporters, which records are held by a third-party telephone company. The Times has moved for summary judgment under Rule 56, Fed.R.Civ.P., seeking certain of the relief sought in its complaint. The government has cross-moved for summary judgment dismissing the complaint. Upon the facts found to be undisputed and the conclusions of law set forth below, the government’s motion to dismiss is denied, its cross-motion for summary judgment is granted in part and denied in part, and the motion of The Times is granted in part and denied in part. The Issues Presented These motions present competing considerations of the role of secrecy in our society. Secrecy may well be seen as the enemy of freedom when it conceals facts important to public understanding. Yet here, both sides seek to enforce secrecy, albeit from dramatically different perspectives. The government, through a grand jury proceeding, seeks to investigate, and perhaps to prosecute, an alleged breach of a government secret, namely, the timing of the seizure of assets and Federal Bureau of Investigation (“FBI”) searches of the offices of two Islamic charities in the fall of 2001. The Times, in opposing the government’s efforts, seeks to keep confidential the identity of the sources known to two of its reporters who wrote articles during the same period. At issue is the proper relationship between two vitally important aspects of our democracy: the free press on the one hand and the fair and full administration of criminal justice on the other. Secrecy in government appears to be on the increase. See, e.g., Pete Weitzel, Freedom of Information: A Zeal for Secrecy, The American Editor, May-June-July 2004, at 4; Bill Moyers, Journalism Under Fire, Address at the Society of Professional Journalists 2004 National Convention (Sept. 11, 2004), available at http://www.spj.org/moy-ers_spch.pdf (last visited Feb. 22, 2005). This development may well impact the ability of the press to report the news. See, e.g., The Reporters Committee for Freedom of the Press, Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know (5th ed.2004), available at http://www.rcfp.org/homefrontconfiden-tial/ (last visited Feb. 22, 2005). The free press has long performed an essential role in ensuring against abuses of governmental power. Indeed, [T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (observing that “[t]he Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs”) (internal citation omitted). Informed public opinion, as our Supreme Court has recognized, “is the most potent of all restraints upon misgovernment....” Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (“Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.”); New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Black, J., concurring) (“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.... The press was protected so that it could bare the secrets of government and inform the people”). In order to gather information on sensitive topics, reporters, particularly those investigating stories that implicate our government and public officials, often depend upon confidential sources. In the words of Max Frankel, the former Executive Editor of The Times, offered some thirty years ago in connection with the Pentagon Papers case: In the field of foreign affairs, only rarely does our Government give full public information to the press for the direct purpose of simply informing the people. For the most part, the press obtains significant information bearing on foreign policy only because it has managed to make itself a party to confidential materials, and of value in transmitting those materials from government to other branches and offices of government as well as the public at large. This is why the press has been wisely and correctly called The Fourth Branch of Government. (Affidavit of Judith Miller, sworn to Nov. 12, 2004 (“Miller Aff”), Ex. 8, at ¶7.) Just as the ability of the press to report on issues of significance often depends on information obtained from others, so too is the ability of federal prosecutors to investigate and enforce the nation’s criminal laws dependent upon the power of the federal prosecutor to obtain, at times through compulsion, testimony and evidence necessary to determine whether a crime has been committed. It is axiomatic that, in seeking such testimony and evidence, the prosecutor acts on behalf of the public and in furtherance of the “strong national interest in the effective enforcement of its criminal laws.” United States v. Davis, 767 F.2d 1025, 1035 (2d Cir.1985) (citations omitted). Indeed, it is a fundamental and “ancient proposition of law,” United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), that “ ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.” Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (citations omitted and alteration in original). Here presented by the motions and cross-motion are the conflicting interests of the press and the federal criminal justice system — each institution, in turn, representing distinct interests of the public— under the particular circumstances presented by the parties to this litigation. By this action, The Times seeks a declaratory judgment that the telephone records of two reporters employed by The Times, Judith Miller (“Miller”) and Philip Shenon (“Shenon”), relating to time periods of twenty-three and eighteen days, respectively, during the months following September 11, 2001, are protected against compelled disclosure by the First Amendment to the U.S. Constitution, federal common law and the guidelines of the U.S. Department of Justice (“DOJ”) set forth in 28 C.F.R. § 50.10 (the “Guidelines”). The telephone records at issue, held by an unidentified third-party telephone company or companies, are being sought by the government as part of an investigation to uncover the identity of one or more government employees who purportedly “leaked” information to Miller and Shenon relating to the government’s plans to block the assets and search the offices of two Islamic charity organizations in the fall of 2001. According to The Times, the disclosure of the telephone records at issue would not only constitute an unacceptable violation of the privacy of both Miller and Shenon but would also likely reveal the identities of dozens of confidential sources who are of no relevance to the government’s investigation. It is the position of The Times that reporters are afforded both constitutional and common law protections with respect to the preservation of the identity of confidential sources, and that, under the circumstances of this case, the government has failed to establish that these protections are outweighed by the interest in effective law enforcement. It is the government’s position that the relief sought by The Times is both unwarranted and inappropriate, as the grant of such relief would permit a federal district court of the Southern District of New York to interfere with and potentially enjoin an investigation currently being conducted by a federal grand jury in the Northern District of Illinois, thereby encroaching on the authority of the Chief Judge of that district. The government further argues that the reporter’s privilege invoked by The Times does not protect the telephone records in question and, even if it did, is outweighed by the public’s interests in law enforcement, the fair administration of criminal law, and the prevention of misconduct by government agents. The statement of these issues establishes the sensitive and difficult nature of the task presented to the Court. Prior Proceedings This action was initiated on September 29, 2004 by the filing of a complaint by The Times seeking a declaratory judgment and alleging four causes of action. Count I alleges a violation of the First and Fifth Amendments of the U.S. Constitution by virtue of the government’s efforts to obtain and review the telephone records at issue without affording The Times an opportunity to be heard before a court of law. Counts II and III allege that the telephone records at issue are protected from disclosure under the First Amendment and by virtue of the reporter’s privilege under federal common law, respectively. Count IV alleges that the government has not complied with the Guidelines. The parties subsequently agreed to maintain the status quo with respect to the records sought and agreed to a briefing schedule. On October 14, 2004, the government moved under Rule 12, Fed. R. Civ. P., to dismiss the complaint. On November 12, 2004, pursuant to Rule 56, Fed.R.Civ.P., The Times moved for summary judgment on Counts II, III and IV. On January 8, 2005, pursuant to Rule 56, Fed.R.Civ.P., the government cross-moved for summary judgment to dismiss the same claims. The parties argued all three motions on January 19, 2005, and the motions were marked fully submitted at that time. Facts The following facts are drawn from The Times’ Local Civil Rule 56.1 Statements, the government’s Local Civil Rule 56.1 Statement, and the supporting affidavits and affirmations submitted by the parties. Miller has been an investigative reporter for The Times since 1977, serving as a bureau chief, editor, and special correspondent, and she has authored four books (including Germs, an analysis of the threat posed by germ warfare that was published in September, 2001). She shared a Pulitzer Prize for a series of articles concerning international terrorism including A1 Qaeda published in The New York Times in January 2001. She has written for The Times on national security, terrorism, the Middle East, and weapons of mass destruction. Shenon has been a correspondent for The Times since 1981. He began his career at The Times as an assistant in the Washington bureau, and he subsequently served as a correspondent in Iran, Kuwait, Iraq, and Thailand. He then returned to The Times’ Washington bureau. Shenon has been nominated for a Pulitzer Prize. He has written for The Times on homeland security, terrorism, the work of the National Commission on Terrorist Attacks Upon the United States (commonly known as the 9-11 Commission), the organization of intelligence agencies, and the prosecution of Zacarías Moussaoui, an alleged co-conspirator in the attacks of September 11, 2001. Miller and Shenon have utilized confidential sources consistently in their work, and both have testified that confidential sources are essential in their reporting. (Miller Aff. ¶ 17; Affidavit of Philip She-non, sworn to Nov. 9, 2004 (“Shenon Aff.”), at ¶ 12.) Miller and The Times have reported on terrorism and the involvement of Islamic charities since 1993. See, e.g., Judith Miller, Israel Says that a Prisoner’s Tale Links Arabs in U.S. to Terrorism, N.Y. Times, Feb. 17,1993, at Al. On February 19, 2000, The New York Times published an article written by Miller that stated that the U.S. government was investigating more than thirty Islamic charities suspected of having ties with terrorist organizations. See Judith Miller, Some Charities Suspected of Terrorist Role, N.Y. Times, Feb. 19, 2000, at A5. According to the article, targets of this investigation included two U.S. entities: the Global Relief Foundation, Inc. (“GRF”), located in Bridgeview, Illinois, and the Holy Land Foundation for Relief and Development (“HLF”), located in Richardson, Texas. See id. The October 1, 2001 edition of The New York Times carried an article co-authored by Miller stating that “administration officials” were recommending that GRF be added to a list of Islamic charities and organizations whose assets would be frozen because they were “suspected of providing money and support to [Osama bin Laden’s] terrorist operations.” Judith Miller & Kurt Eichenwald, A Nation Challenged: The Investigation; U.S. Set To Widen Financial Assault, N.Y. Times, Oct. 1, 2001, at Al. This article relied on information provided to Miller by confidential sources. On November 4, 2001, The Los Angeles Times carried a front-page article reporting that federal authorities were “intensifying their scrutiny of Islamic American nonprofits,” including GRF and HLF, “as possible sources of funding for Al Qaeda and other terrorist organizations,” and that the Treasury Department was seeking financial records related to GRF, HLF and other charities. Lisa Getter et al., Response To Terror; Sunday Report; Islamic American Nonprofits Face Increased Scrutiny in U.S., L.A. Times, Nov. 4, 2001, at Al. This article quoted an HLF director who claimed that he had been interviewed several weeks earlier by two FBI agents and that the agents communicated concerns that HLF was affiliated with terrorists. See id. At some time prior to December 3, 2001, Miller received information from one or more confidential sources concerning the government’s intent to freeze the assets of HLF. (Miller Aff. ¶ 9.) On December 3, 2001, consistent with The Times’ policy of seeking comment from the subjects of its articles, Miller telephoned HLF and spoke with HLF representatives about the information that had been disclosed to her by one or more confidential sources. According to Miller, she sought comment from HLF at this time only “about the government’s intent to block HLF’s assets,” and she did not intend to tip-off HLF about the impending FBI search of HLF’s offices. (Id. ¶ lOll.) Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois (“Fitzgerald”), representing the government, has stated that on the night of December 3, 2001, Miller disclosed to HLF personnel that “government action was imminent” (Affirmation of Patrick J. Fitzgerald, dated Nov. 19, 2004 (“Fitzgerald Aff.”), at ¶ 3), and that the HLF personnel were surprised by the information conveyed by Miller. (Id. ¶ 5). According to Miller, “[t]hat government action was taken against [HLF] did not come as a surprise to even a casual observer.” (Miller Aff. ¶ 5.) On December 4, 2001, The New York Times carried an article written by Miller that revealed that President Bush planned to announce that the federal government was freezing HLF’s assets. See Judith Miller, U.S. To Block Assets It Says Help Finance Hamas Killers, N.Y. Times, Dec. 4, 2000, at Al. This article was available on The Times’ website on the evening of December 3 and in the early editions of the December 4 newspaper, which were available at newsstands late in the evening on December 3. On December 4, 2001, FBI agents searched HLF’s offices. According to Fitzgerald, the disclosure by Miller to HLF on December 3 had the effect of creating increased safety risks to the FBI agents conducting the search and of increasing the likelihood of destruction or concealment of evidence or assets. (Fitzgerald Aff. ¶ 3.) According to The Times, the government has provided no facts to support its assertion that the HLF search was so compromised. At some point prior to December 13, 2001, Shenon received information concerning the government’s intent to freeze the assets of GRF. (Shenon Aff. ¶ 5.) This information came from one or more confidential sources. (Id.) Consistent with The Times’ policy of seeking comment from the subjects of its articles, on December 13, 2001, Shenon contacted a GRF representative about the information received from the confidential sources. The GRF representative referred Shenon to a GRF attorney with whom Shenon subsequently spoke. According to Shenon, he contacted GRF “for the purpose of seeking comment on the government’s apparent intent to freeze its assets.” (Id. ¶ 7.) According to the government, Shenon disclosed to the GRF representatives that “government action was imminent.” (Fitzgerald Aff. ¶ 3). Fitzgerald has noted that The Washington Post reported that GRF representatives were surprised by Shenon’s disclosure to them. (Id. ¶ 5 (quoting Susan Schmidt, Reporters’ Files Subpoenaed; New Leak Probe Concerns 2001 Raid on Islamic Charity, Wash. Post, Sept. 10, 2004, at A16).) Shenon has stated that in light of prior news reports and prior government actions, the GRF raid was not a surprise. (Shenon Aff. ¶ 8.) On December 14, 2001, FBI agents searched GRF’s offices. According to Fitzgerald, Shenon’s December 13 communication with GRF representatives put at risk the FBI agents who conducted the search and increased the likelihood that evidence and assets would be destroyed or concealed. (Fitzgerald Aff. ¶ 3.) According to The Times, the government has failed to come forward with any evidence that the investigation was compromised or that the FBI agents were endangered. At some point after December 14, 2001, the U.S. Attorney’s Office for the Northern District of Illinois and the FBI Chicago Field Office commenced an investigation to determine whether government officials were responsible for disclosing to The Times that a search of GRF’s offices was imminent. By letter dated August 7, 2002, Fitzgerald requested that The Times cooperate with the GRF investigation. To this end, Fitzgerald requested a voluntary interview with Shenon and voluntary production of the telephone records for Shenon for September 24 to October 2, 2001 and December 7 to December 15, 2001. By letter dated August 13, 2002, George Freeman (“Freeman”), Assistant General Counsel of The Times, responded to Fitzgerald’s August 7 letter. Freeman stated that The Times had considered Fitzgerald’s request but could not comply because Shenon’s newsgathering activities, and, in particular, his conversations with confidential sources, were protected by the First Amendment, federal common law, applicable state law, and the Guidelines. The parties had no further communication until the summer of 2004. By letter dated July 12, 2004, Fitzgerald informed The Times that his investigation had been expanded to include the alleged leak to Miller concerning the government’s plans to freeze HLF’s assets. Fitzgerald reiterated his previous request for a voluntary interview with Shenon and for voluntary production of the previously requested telephone records. Furthermore, he requested a voluntary interview with Miller and voluntary production of her telephone records for the following three time periods in 2001: September 24 to October 2, November 30 to December 4, and December 7 to December 15. Finally, pursuant to the Guidelines, Fitzgerald disclosed that he had been “duly authorized to obtain and review information from other sources, particularly those entities providing telephone service to The New York Times, Ms. Miller and Mr. Shenon.” (Affidavit of Floyd Abrams, sworn to Nov. 12, 2004 (“Abrams Aff.”), Ex. 3, at 2.) Fitzgerald warned that he intended to exercise this authority to obtain the telephone records “in very short order” if The Times refused to cooperate with the investigation. (Id.) After The Times received Fitzgerald’s July 12 letter, Freeman and Floyd Abrams (“Abrams”), outside counsel to The Times, contacted The Times’ telephone service providers. Freeman and Abrams requested that these providers notify The Times upon the receipt of any government subpoena for the telephone records of Miller and Shenon and that they not turn over such records to the government without first providing The Times an opportunity to mount a legal challenge to the compelled disclosure of such records. The telephone service providers responded that they would not undertake to inform The Times of any such subpoenas. By letter of July 21, 2004, Freeman responded to Fitzgerald’s July 12 letter. Freeman stated that pursuant to the Guidelines and relevant case law, Fitzgerald had an obligation to exhaust all potential alternative sources for the sought information before resorting to compulsory process. Freeman stated that Fitzgerald’s letters had failed to indicate what steps, if any, Fitzgerald had taken to satisfy this obligation. Freeman’s letter stated: We are especially concerned about your request regarding the phone records of two of our reporters. Obviously, were you to obtain such records, they would implicate not only the sources you claim exist with respect to the leaks you apparently are investigating, but, far more broadly, all of the sources that journalists Shenon and Miller had during [the] months indicated. This truly would be a fishing expedition well beyond any permissible bounds and would be a very serious violation of rights clearly protected by the First Amendment: with respect to all of their sources other than those implicated by your investigation, no showing would have been made by the government regarding the need to obtain those phone numbers and sources. (Id. Ex. 4, at 2.) Freeman stated that if the dispute over the telephone records for Miller and Shenon could not be otherwise resolved, The Times planned to litigate the issue. Freeman requested that subpoenas not be served on The Times’ telephone providers or other third parties until The Times was provided an opportunity, if necessary, to put the issue before a court. By letter dated July 27, 2004, Fitzgerald responded to Freeman’s July 21 letter. Fitzgerald stated that pursuant to the Guidelines, The Times was not entitled to know what steps had previously been taken with respect to the investigation at issue. Fitzgerald stated: “We do not intend to engage in debate by letter. We will not delay further and will proceed.” (Id. Ex. 5, at 1.) Nonetheless, Fitzgerald invited Freeman to speak with him concerning The Times’ cooperation with the investigation. After The Times received Fitzgerald’s July 27 letter, Abrams spoke with Fitzgerald by telephone. During the course of this conversation, Abrams asked Fitzgerald whether The Times’ telephone records were being sought in connection with a grand jury investigation and whether the telephone records had already been obtained. Fitzgerald declined to answer either question. However, Fitzgerald agreed to give Abrams a period of time to familiarize himself with the situation, and that, in the interim, the government would not seek to obtain any of The Times’ telephone records that it had not already obtained and that it would not review any such previously-obtained records. By letter dated August 4, 2004, Abrams and Kenneth W. Starr (“Starr”), outside counsel to The Times, requested that Deputy U.S. Attorney General James Comey (“Comey”) grant The Times a meeting to discuss Fitzgerald’s efforts to obtain the telephone records for Miller and Shenon. Abrams and Starr stated that the telephone records at issue reflected hundreds of communications between Miller, Shenon and them respective confidential sources at a time when both reporters were investigating and reporting on an array of important and controversial issues. Abrams and Starr asserted that discovery of the telephone records could lead to the disclosure of potentially dozens of confidential sources without permitting The Times an opportunity to attempt to persuade a court that the records are protected. Finally, Abrams and Starr requested that the government not seek the telephone records at all or, in the alternative, agree to do so in a way that would afford The Times and its reporters the opportunity to assert that the records are protected. Fitzgerald and Abrams spoke after the August 4 letter was delivered to Comey. According to Abrams, Fitzgerald at that time agreed that, pending a response from Comey, the government would continue to abide by his previous representations. (Abrams Aff. ¶ 12.) By letter dated September 23, 2004, Co-mey declined The Times’ request for a meeting. Comey concluded that Fitzgerald’s conduct was proper in all respects: Your complaint that [DOJ] failed to articulate a “need” for the records at issue presumes that we have an obligation to share with the New York Times a summary of the investigation to date before we can conduct our investigation. We have no such obligation and, indeed, are bound by law not to share sensitive investigative information with the press. Nor do we have an obligation to afford the New York Times an opportunity to challenge the obtaining of telephone records from a third party prior to our review of the records, especially in investigations in which the entity whose records are being subpoenaed chooses not to cooperate with the investigation .... Having diligently pursued all reasonable alternatives out of regard for First Amendment concerns, and having adhered scrupulously to [DOJ] policy, including a thorough review of Mr. Fitzgerald’s request within [DOJ], we are now obliged to proceed. (Abrams Aff. Ex. 7, at 1-2.) The Times initiated the present legal action on September 29, 2004. By letter dated October 14, 2004, Abrams informed the Court that “[w]e have engaged in fruitful discussions with counsel for the Government and can report that the Government has agreed to forgo any action to obtain records or to review any records that may have already been obtained until such time as [the Court] has ruled on the planned motions.... ” (Letter from Abrams to the Court of Oct. 14, 2004, at 1.) In its brief dated October 27, 2004, the government stated for the first time that in connection with the HLF and GRF leaks, a grand jury empaneled in the Northern District of Illinois is currently investigating violations of law, including obstruction of justice, by federal government officials in the fall of 2001. During the relevant time period from which telephone records are sought, The New York Times published fifteen articles written by Shenon and Miller. Many of these articles included information and statements provided by confidential sources. During this time period, Shenon and Miller also investigated and gathered information for numerous other articles that were not published until weeks later. (Miller Aff. ¶ 13; Shenon Aff. ¶ 11.) According to Miller and Shenon, the sought records will reveal hundreds of communications between Shenon and Miller and their confidential sources. (Miller Aff. ¶ 13; Shenon Aff. ¶ 11.) Both Miller and Shenon have testified that the telephone records sought by the government will reveal communications with confidential sources that did not concern the HLF and GRF seizures (Miller Aff. ¶ 21; Shenon Aff. ¶ 15) as well as personal calls made by them. (Miller Aff. ¶ 12; Shenon Aff. ¶ 10.) Miller and She-non have both testified that disclosure of their confidential sources in this case would likely undermine their ability to elicit information from confidential sources in the future. (Miller Aff. ¶ 21; Shenon Aff. ¶ 12.) Russell Scott Armstrong (“Armstrong”), a professional journalist with experience reporting on national securities matters and an expert on the use of secret and classified documents in daily journalism, has stated: Many sources require ... guarantees of confidentiality before any extensive exchange of information is permitted.... [E]ven in public institutions that are known for their transparency and openness, officials and staff often require such guarantees of confidentiality before discussing sensitive matters such as major policy debates, personnel matters, investigations of improprieties and financial and budget matters.... Many types of reporting require the use of confidential sources. Prominent among these uses are ... investigative or “enterprise” journalism.... (Affidavit of Russell Scott Armstrong, sworn to Nov. 23, 2004 (“Armstrong Aff.”), at ¶¶ 9-10.) According to Armstrong, the broad use of secrecy in government and among corporate and institutional entities creates a need for journalists to rely on confidential sources. (Id. ¶ 13.) Jack Nelson, a former journalist with experience covering the administrations of U.S. presidents, has stated: A reporter whose telephone records are turned over to prosecutors, thus potentially revealing dozens of confidential sources, would be greatly compromised in any future attempts to cover government. Other government sources who insist on confidentiality would have no reason to believe that the reporter could uphold such a promise and would refuse to cooperate. And it would undoubtedly have a ripple effect, silencing whistle-blowers and other government employees who might otherwise cooperate with the press in exposing government wrongdoing. (Affidavit of Jack Nelson, sworn to Nov. 23, 2004 (“Jack Nelson Aff.”), at ¶ 6.) A Pulitzer Prize winner, Jack Nelson has catalogued a series of reports made possible through the use of confidential sources, including disclosures relating to Watergate, the pardon of President Nixon, allegedly improper activities of OMB Director Bert Lance and Billy Carter during the Carter presidency, Iran/Contra, and the Monica Lewinsky scandal. (Jack Nelson Aff. ¶ 5.) Jeffrey H. Smith (“Smith”), a lawyer with deep and varied experience in government, has testified by affidavit as to the function performed by government confidential sources: As a long-time government attorney handling national security matters, I know that federal agencies benefit from the ability to have official speak confidentially, although in an authorized manner, with the news media.... This permits the government to get information to the public without attribution to a named official or without publicly declaring the statement as official policy. (Affidavit of Jeffrey H. Smith, sworn to Nov. 23, 2004 (“Smith Aff.”), at ¶ 3.) Smith has stated that “[authorized disclosures ‘on background’ are substantially different than unauthorized leaks.” (IcL ¶ 4.) “Nonetheless some leaks may be in the public interest.” (Id. ¶ 5.) Anna Nelson, a historian whose scholarship focuses on United States foreign policy, has stated: Requiring journalists to reveal the identities of their sources, or obtaining the identity of those sources through telephone record subpoenas, would impoverish our knowledge of contemporary history since confidential sources are often the only sources available to the journalist and thus the original source for historians seeking to unravel public policy or foreign policy. A journalist’s exposure of the My-Lai incident is just such an example. The journalist was able to keep his sources confidential and as a consequence, historians have deepened their view of the way in which the war in Vietnam was fought.... The sources used by journalists are also important to counter the deliberate leaks from the government that are designed to influence the public. (Affidavit of Anna Nelson, sworn to Nov. 23, 2004 (“Anne Nelson Aff.”), at ¶¶ 5-6.) Discussion I. The Standards to be Applied A. The Rule 12(b) Standard Rule 12(b), Fed.R.Civ.P., provides that a defendant may move to dismiss a complaint for “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, [and] (7) failure to join a party under Rule 19.” Fed.R.Civ.P. 12(b). Although the government has not specified which subsection of Rule 12 is being invoked in connection with its motion to dismiss the complaint, the grounds raised in the motion suggest that subsection (6) is the relevant provision. In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the complaint liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor,” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)), although “mere conclusions of law or unwarranted deductions” need not be accepted. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (quotation marks and citation omitted). “ ‘[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ” York v. Ass’n of Bar of City of New York, 286 F.3d 122, 125 (2d Cir.) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), cert. denied, 537 U.S. 1089, 123 S.Ct. 702, 154 L.Ed.2d 633 (2002). In other words, “ ‘the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir.2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). “[T]he court should not dismiss the complaint for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Eternity Global Master Fund, 375 F.3d at 176-77. B. The Rule 56 Standard In considering a motion for summary judgment in an action for declaratory relief, courts apply the same standard under Rule 56, Fed.R.Civ.P., applicable to any other summary judgment motion. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1111 (2d Cir.1997); Roe v. City of New York, 232 F.Supp.2d 240, 252 (S.D.N.Y.2002). Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir.2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where the moving party has shown that “little or no evidence may be found in support of the nonmoving party’s case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-24 (2d Cir.1994) (internal citations omitted). If, however, “ ‘as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.’ ” Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995) (citation omitted). This burden may be satisfied “by showing- — that is pointing out to the district court — -that there is an absence of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.2002) (per curiam) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). In other words, the non-moving party “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); accord Scotto, 143 F.3d at 114-15. A material fact is one that would “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (per curiam) (“[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.”). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). II. The Motion to Dismiss Under Rule 12(b) Is Denied Given the government’s theory of dismissal, i.e., that the court should decline to exercise its discretion to declare the rights of the litigants, it is assumed that the government is proceeding pursuant to Rule 12(b)(6), Fed.R.Civ.P. See, e.g., Alpine Group, Inc. v. Johnson, No. 01 Civ. 5532(NRB), 2002 WL 10495, at *4 (S.D.N.Y. Jan.3, 2002) (dismissing declaratory judgment claim on discretionary grounds pursuant to Rule 12(b)(6)); Gianni Sport Ltd. v. Metallica, No. 00 Civ. 0937(MBM), 2000 WL 1773511, at *6 (S.D.N.Y. Dec.4, 2000) (same); Wilkinson v. Caronia Corp., No. 95 Civ. 5668(JSM), 1995 WL 653374, at *1 (S.D.N.Y. Nov.7, 1995) (same). For the reasons set forth below, the government’s motion is denied. A. The Requirements Of The Declaratory Judgment Act The Declaratory Judgment Act provides in pertinent part that: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201(a). The policy “animating the Declaratory Judgment Act ... is to enable parties to adjudicate their disputes before either suffers great damage.” Starter Corp. v. Converse, Inc., 84 F.3d 592, 596 (2d Cir.1996) (citing In re Combustion Equipment Assocs., 838 F.2d 35, 37 (2d Cir.1988)). Not every dispute may be adjudicated in the federal courts as a declaratory judgment action. First, a basis for subject matter jurisdiction must exist apart from the Declaratory Judgment Act itself, as section 2201 “provides no independent basis for subject matter jurisdiction.” Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir.1996) (citing Albradco, Inc. v. Bevona, 982 F.2d 82, 85 (2d Cir.1992)); accord Starter, 84 F.3d at 594. Second, the Declaratory Judgment Act “permits declaratory relief only in cases presenting ‘actual controversies],’ 28 U.S.C. § 2201(a), a requirement that incorporates into the statute the case or controversy limitation on federal jurisdiction found in Article III of the Constitution.” Niagara Mohawk Poiver, 94 F.3d at 752 (alteration in original) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). There is “no bright line rule for determining ‘whether the dispute presents a substantial controversy or merely an abstract question’.... Instead, courts must decide whether a justiciable controversy exists ‘on a case by case basis.’ ” American Pioneer Tours, Inc. v. Suntrek Tours, Ltd., No. 97 Civ. 6220(DLC), 1998 WL 60944, at *2 (S.D.N.Y. Feb.13, 1998) (citing Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.1991)). As the Supreme Court explained in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), The difference between an abstract question and a “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Maryland Cas., 312 U.S. at 273, 61 S.Ct. 510. Thus, a declaratory judgment action “presents an actual controversy if ‘the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” In re Prudential Lines Inc., 158 F.3d 65, 70 (2d Cir.1998) (quoting Maryland Cas., 312 U.S. at 273, 61 S.Ct. 510); accord Starter, 84 F.3d at 594-95; Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 17 (2d Cir.1993). Where it appears that “the contingent event upon which the controversy rests is unlikely to occur, the controversy lacks ‘sufficient immediacy and reality’ to warrant declaratory relief.” In re Prudential Lines, 158 F.3d at 70 (citing Certain Underwriters at Lloyd’s v. St. Joe Minerals Corp., 90 F.3d 671, 675 (2d Cir.1996) (observing that, “in the absence of an ‘actual controversy,’ a district court is without power to grant declaratory relief’) (citation omitted)). Similarly, [t]he disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them. Jenkins v. United States, 386 F.3d 415, 417-418 (2d Cir.2004) (quoting Public Serv. Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291 (1952)) (quotation marks omitted); see also Certain Underwriters at Lloyd’s, 90 F.3d at 675 (observing that “[i]t is by now traditional law that ‘[t]he judicial power does not extend to ... abstract questions’ ”) (quoting Wycoff, 344 U.S. at 242, 73 S.Ct. 236 (internal quotation marks and citation omitted)). “Where the relief sought ‘would not resolve the entire case or controversy as to any [party] ..., but would merely determine a collateral legal issue governing certain aspects of ... pending or future suits,’ ” a subject of the declaratory judgment action does not qualify as a controversy under Article III. Jenkins, 386 F.3d at 418 (quoting Calderon v. Ashmus, 523 U.S. 740, 747, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998)). “Whether a real and immediate controversy exists in a particular case is a matter of degree and must be determined on a case-by-case basis.” Kidder, Peabody, 925 F.2d at 562. B. The Times Has Alleged An Actual Controversy The government has not challenged the existence of subject matter jurisdiction over The Times’ claims pursuant to 28 U.S.C. § 1331 and § 1346(a)(2). Nor has the government raised any argument as to the propriety of venue pursuant to 28 U.S.C. § 1391. With respect to the Article III case or controversy requirement, the government has acknowledged that The Times has standing to assert its claim to a “legally cognizable [First Amendment] interest in the materials or information sought” by the government subpoena. (Gov. Mem. Supp. Mot. Dismiss at 8-9.) It is well established that “[a] privilege may be invoked by a news gathering agency, in addition to a person engaging in news gathering dissemination.” In re Williams, 766 F.Supp. 358, 369 n. 12 (W.D.Pa.1991) (citing United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980) (stating that a television network holds a privilege protecting against the disclosure of information gathered by its news reporters)), aff'd by an equally divided en banc court, 963 F.2d 567 (3d Cir.1992); Gulliver’s Periodicals v. Chas. Levy Circulating Co., Inc., 455 F.Supp. 1197 (N.D.Ill.1978) (stating that “[a] publisher and [its] reporters are protected by the [F]irst [A]mendment ... from revealing the sources and source material on which they relied in writing and publishing [an] article”). However, the government contends that the facts alleged, which it characterizes as concerning “hypothetical subpoenas issued in hypothetical circumstances[,]” (Gov. Mem. Supp. Mot. Dismiss at 7-8 n. 5), present merely a hypothetical question and no actual dispute. To the contrary, it is alleged that: (1) subpoenas have been threatened (Compl. ¶¶ 25 (quoting Letter of Fitzgerald to Watson of July 12, 2004, at 2), 28 & 30); (2) the Deputy Attorney General has stated that the Department is “obliged to proceed” (Compl. ¶ 30 (quoting Letter from Comey to Abrams of Sept. 23, 2004, at 2)); and (3) the government has previously rejected requests by The Times for details concerning when such subpoenas will issue. (ComplY 3). Based on these allegations, The Times has properly stated: (1) that there is a substantial controversy, (2) that the parties have adverse legal interests, and (3) that the controversy has sufficient immediacy and reality. See In re Prudential Lines, 158 F.3d at 70. Therefore, declaratory relief is appropriate to allow the resolution of this dispute before it has “ripened to a point at which an affirmative remedy is needed.” See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 3d § 2751, at 455 (1998). Because this dispute involves First Amendment rights, the existence of a case and controversy is that much more apparent. See City of Houston v. Hill, 482 U.S. 451, 459 n. 7, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (stating that the plaintiff had standing to seek declaratory and injunctive relief where a “genuine threat” existed that he would be prosecuted under an overbroad statute) (citation omitted); Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (stating that the petitioner presented an “actual controversy” within the meaning of Article III and the Declaratory Judgment Act where the threat of prosecution for distributing handbills was not “imaginary or speculative”); see also Carlin Communications, Inc. v. Smith, No. 83 Civ. 9004(CBM), 1984 WL 330, at *6 (S.D.N.Y. May 8, 1984) (stating that “plaintiffs asserting the violation of First Amendment rights need not wait until they are subjected to criminal prosecution before challenging the statute in issue”). Natco Theatres, Inc. v. Ratner, 463 F.Supp. 1124, 1127 (S.D.N.Y.1979) (stating that the plaintiff had standing to challenge a licensing statute on First Amendment grounds despite the fact that it had not yet applied for a license). Under these principles and authorities, a justiciable controversy has been presented. C. The Discretionary Exercise of Jurisdiction The government has urged the Court to decline to entertain The Times’ declaratory relief action on the following discretionary grounds: (1) that a motion to quash pursuant to Rule 17(c), Fed.R.Crim.P., is the more appropriate means of attacking a grand jury subpoena and (2) that this declaratory judgment action unreasonably encroaches on the authority of the District Court for the Northern District of Illinois, under whose auspices the subpoenas may issue. The parties dispute the degree of discretion possessed by this Court in deciding whether to entertain a declaratory judgment action. According to The Times, “a district court is required to entertain a declaratory judgment action ‘(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, or (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ” Starter, 84 F.3d at 597 (quoting Continental Cas., 977 F.2d at 737). The government contends that, pursuant to Supreme Court and Second Circuit cases decided after Starter, even where there is jurisdiction and an actual controversy, a district court retains discretion as to whether it will entertain a declaratory judgment action. The Supreme Court has explained: Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants. On its face, the statute provides that a court “may declare the rights and other legal relations of any interested party seeking such declaration,” [28 U.S.C. § 2201(a) ].... The statute’s textual commitment to discretion, and the breadth of leeway we have always understood it to suggest, distinguish the declaratory judgment context from other areas of the law in which concepts of discretion surface. Wilton v. Seven Falls Co., 515 U.S. 277, 286-87, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (emphasis in original and citations omitted). The Second Circuit has subsequently affirmed a district court’s refusal to entertain a declaratory judgment action based on a “detailed analysis” of the following five factors: (1) “whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved”; (2) “whether a judgment would finalize the controversy and offer relief from uncertainty”; (3) “whether the proposed remedy is being used merely for ‘procedural fencing’ or a ‘race to res judicata’ ”; (4) “whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court”; and (5) “whether there is a better or more effective remedy.” Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir.2003) (citations omitted). Based on Wilton and Dow Jones, it is concluded that this Court possesses broad discretion concerning whether to exercise its jurisdiction to entertain a declaratory judgment action. 1. The Availability of a More Appropriate Remedy While conceding that the existence of another adequate remedy normally does not preclude declaratory judgment, the government asserts that pursuant to the advisory committee notes to Rule 57, Fed. R.Civ.P., a declaratory judgment should not be granted where a special statutory proceeding has been provided for the adjudication of the issue in dispute. The advisory committee notes relating to the 1937 adoption of Rule 57 state as follows: A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case, but general ordinary or extraordinary legal remedies, whether regulated by statute or not, are not deemed special statutory proceedings. Id. The government contends that just such a special statutory proceeding is available in this case: a motion to quash under Fed.R.Crim.P. 17(c). According to The Times, a motion to quash is not a special statutory proceeding. However, neither party has cited authorities that define “special statutory proceeding” or that provide a criteria for determining whether a given proceeding constitutes a “special statutory proceeding.” An influential commentator has provided the following useful description of the special statutory proceedings that are contemplated by the advisory notes to Rule 57: It has already been noted that the declaratory action was not designed to interfere with the jurisdiction of special courts, but that on the contrary courts within their respective jurisdictions over persons and subject-matter were authorized by the Declaratory Judgment Acts to render declaratory judgments. Thus, when a probate court has jurisdiction over the construction of wills and matters of guardianship, it was not intended that courts of general jurisdiction should oust the jurisdiction of such special tribunals. In analogy thereto, where a special statutory procedure has been provided as an exclusive remedy for the particular type of case in hand, such as income tax assessment, tax abatement, workmen’s compensation, unemployment compensation, annulment of a bigamous marriage, that specific recourse must be followed. Thus, a court should not by declaratory judgment ordinarily interfere with the jurisdiction of an administrative commission, especially where the statute is not ambiguous and where the jurisdiction of the committee depends on a jurisdictional fact ... which the commission must in first instance determine. Edwin Borchard, Declaratory Judgments, at 342-43 (2d ed.1941) (citations omitted and emphasis in original). Borchard’s definition of the term “special statutory proceeding” — ie., that it denotes a procedure that is intended as the exclusive means for the adjudication of a particular category of case (e.g., income tax assessment cases or workers’ compensation claims) — is regarded as authoritative. See, e.g., Lac D'Amiante du Quebec, Ltee v. American Home Assur. Co., 864 F.2d 1033, 1042 (3d Cir.1988); Washington Terminal Co. v. Boswell, 124 F.2d 235, 260 (D.C.Cir.1941); Upham v. Dill, 195 F.Supp. 5, 10 (S.D.N.Y.1961). The cases cited in the parties’ motion papers appear consistent with the above-described narrow definition of the term “special statutory proceeding.” Those cases identified only three types of proceedings that have been recognized as “special statutory proceedings”: (1) petitions for habeas corpus and motions to vacate criminal sentences, see, e.g., Clausell v. Turner, 295 F.Supp. 533, 536 (S.D.N.Y.1969); (2) proceedings under the Civil Rights Act of 1964, see, e.g., Katzenbach v. McClung, 379 U.S. 294, 296, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); and (3) certain administrative proceedings. See, e.g., Deere & Co. v. Van Natta, 660 F.Supp. 433, 436 (M.D.N.C.1986) (involving a proceeding for decision on patent validity before U.S. patent examiners). The procedure to quash a subpoena pursuant to Rule 17(c) does not fit the above-described narrow definition of the term “special statutory proceeding” because it was not adopted as the exclusive means of adjudicating a particular type of claim. Moreover, under the government’s construction, the “special statutory proceeding” exception to Rule 57 would overwhelm the rule. That is, under the government’s theory, any procedure available under the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure (all of which are referenced in the United States Code) would suffice to satisfy the “special statutory proceeding” requirement, and the Declaratory Judgment Act would be rendered largely nugatory. In the alternative, the government argues that in comparison to a declaratory judgment action, a motion to quash under Rule 17(c) is a more efficient and less cumbersome device for challenging the propriety of a grand jury subpoena. In particular, the government has raised concerns that discovery in this action might prove unwieldy or might improperly encroach upon grand jury secrecy. However, on the facts presented thus far, neither party has sought discovery of evidence put before the grand jury, and neither party has argued that it has suffered prejudice as a result of the absence of such evidence. Moreover, an efficient mechanism exists for the disposition of any petitions for disclosure of grand proceedings that might arise during the course of this action. See Fed.R.Crim.P. 6(e)(3)(E)(i). Pursuant to this mechanism, the district court for the Northern District of Illinois would retain substantial control over any such petition: “[a] petition to disclose a grand-jury matter ... must be filed in the district where the grand jury convened[J” Fed.R.Crim.P. 6(e)(3)(F), and the petitioned court has authority to rule on the petition if it can “reasonably determine whether disclosure is proper.... ” Fed.R.Crim.P. 6(e)(3)(G). Furthermore, in the event that it were to grant such a petition, the district court for the Northern District of Illinois has authority to direct disclosure “at a time, in a manner and subject to any other conditions that it directs.” Fed.R.Crim.P. 6(e)(3)(E). More fundamentally, a motion to quash cannot, as the government claims, provide The Times with the same relief provided by a declaratory judgment. Rule 17(c), Fed.R.Crim.P., provides no authority or mechanism for a court to quash potential subpoenas that have been threatened but which have not yet been issued, and Rule 17(c) does not provide an avenue for relief in situations where subpoenas have been issued and there has been full compliance by the subpoenaed party. In contrast, an action for declaratory judgment pursuant to 28 U.S.C. § 2201(a) — “which allows the court to declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought,” provides potential relief as to those records that have already been obtained as well as those that the government is currently seeking to obtain. See, e.g., Doe v. Harris, 696 F.2d 109, 114 (D.C.Cir.1982) (holding that an individual whose records were subpoenaed from a third-party in a grand jury investigation had the right to seek declaratory relief concerning those subpoenas and the issuance of future subpoenas by any U.S. Attorney’s Office). The government also argues that the Court should decline to entertain the present action because The Times has engaged in a form of procedural fencing, whereby it has attempted to circumvent the Federal Rules of Criminal Procedure to obtain an inappropriate tactical advantage. Since, on the facts set forth above, The Times cannot properly avail itself of the remedy afforded by Rule 17(c), there is no merit to the argument that The Times is attempting to circumvent the rule. Based on the foregoing, the government has failed to demonstrate the existence of a more appropriate remedy that would justify refusal to entertain The Times’ declaratory judgment action. 2. The Availability of a More Appropriate Venue The government has not moved to dismiss this action pursuant to Rule 12(b)(3), Fed.R.Civ.P., on the ground of improper venue, and it has not moved for a transfer of venue for the convenience of the parties pursuant to 28 U.S.C. §